Cases and authorities

Costs. Calderbank offers by two of three defendants. Consideration of timing, form and whether it was reasonable to have rejected offers. Held it was reasonable.

PROCEDURE - cross-examination - counsel wishes to cross-examine witness on content of affidavit sworn by him in other proceedings - whether Harman v Home Office principles preclude this

TORTS - negligence - duty of care - duty to protect against acts of third parties - where respondent customer injured on appellant's premises by other customers' unruly behaviour with trolley - whether appellant, by its employees, knew of activities creating risk of injury to the respondent. - EVIDENCE - general - other general matters - unexplained failure to call witnesses - whether Jones v Dunkel inference available - burden of explaining absence of witnesses. - APPEAL - appeal - general principles - law applicable at the time of appeal by way of rehearing - where change in law after trial subsequently reversed by statute prior to hearing of the appeal.

PROCEDURE - power to award costs - does not extend beyond legal professional costs to travel and other expenses of non-lawyer litigant - ADMINISTRATIVE LAW - judicial review - jurisdictional error - order made by Small Claims Division of Local Court without power

TORTS - negligence - motor vehicle accident - whether defendant drove so as to allow plaintiff's vehicle to come up on his passenger's side - evidence insufficient for that to be found - negligence not made out - no question of principle.

CONTRACTS - general contractual principles - construction and interpretation of contracts – text and structure of contracts – background material available to be looked at in the absence of ambiguity - what reasonable person in the position of the parties would have understood the agreements to mean – terms and structure of contract not consistent with operation as a standing offer – entitlement to provide services as set out in contractual obligations

CORPORATIONS - general meetings - meeting called to consider motions for removal of five directors - company by resolution of three of those directors commences proceedings against parties including the other two - company seeks various declaratory relief and injunctions restraining holding of the general meeting - a director defendant seeks permanent stay because of disqualifying material personal interest of each director voting for initiation of proceedings - held that material personal interest existed - whether resolution invalid - whether statutory injunction lies - whether need for court to protect its processes from abuse

CRIMINAL LAW - manslaughter by criminal negligence - omission by parents to obtain appropriate medical assistance for infant daughter - photographs of child tendered as exhibit during trial - parents convicted of manslaughter - application after verdicts by media for release of photographs in exhibit for publication or broadcast - relevant discretionary considerations - open justice principle - exhibit tendered during trial - protection of dignity of deceased victim - publication permitted of certain photographs only in exhibit

Family Provision Act - extent of widow's "primacy" - consideration of the first and second questions identified in Luciano v Rosenblum

DEFAMATION - interrogatories - defendant's objections to answer - whether interrogatories relevant to issues of statutory qualified privilege and malice - whether necessary that answers be ordered - general principles considered

Cheques signed by elderly dementing woman in favour of husband and son - non est factum - "catching bargains" - unconscionability - undue influence

Criminal Law - Crown Appeal - Infliction of grievous bodily harm - suspended sentence - whether manifestly inadequate - relevance of standard non-parole period - failure to give reasons for suspending sentence.

LOCAL GOVERNMENT – Development consent for subdivision of land – Subdivision works to be carried out – Requirements for inspections of stages of subdivision works – Whether inspections required by principal certifying authority – Inspections carried out by person other than a certifying authority – Subdivision certificates issued – Whether s 109E(3) of the Environmental Planning and Assessment Act 1979 breached – Whether subdivision certificate invalid – Exercise of discretion.

CORPORATIONS - winding up in insolvency - statutory demand - application for order setting aside - whether genuine dispute as to existence or amount of debt - debt represented as quantum meruit - no step taken which fixes reasonable remuneration - no means of determining reasonable remuneration - difference between "liquidated claim" and "liquidated sum"

LEASES – lease of premises for conduct of a commercial car wash – demolition clause permitting termination of lease by lessor – where tenant expended money on fitout of premises including installation of machinery and associated costs of construction and installation – where lease terminated - clause providing for payment of compensation to the lessee "for the fitout" upon termination of the lease - where depreciation for the machinery and capitalised cost of the fitout claimed as deduction by a partnership consisting of directors of the lessee – whether lessee had transferred the fitout to the partnership – whether financial and accounting records established transfer of assets to the partnership - nature of the lessee’s interest in the fitout - whether lessee entitled to compensation if no legal or beneficial interest retained – lessee entitled to compensation for the fitout – whether directors’ borrowing costs compensable as having been incurred for the fitout.

SUCCESSION – family provision and maintenance – failure of testator to make sufficient provision for applicant – whether inadequate provision made for widow and for de facto partner – consideration of respective financial circumstances of applicants – held that provision for both inadequate – orders for provision made. - SUCCESSION – family provision and maintenance – practice – whether solicitor’s mistake amounted to sufficient cause for not bringing application within prescribed period – whether further period should be allowed – consideration of factors weighing on discretion – held that sufficient cause established – further period allowed.

TORTS – Trover and Detinue – wine, plant and equipment at winery – sale of winery – plaintiff claims entitlement to possession of wine, plant and equipment – Order that defendants deliver up plant and equipment – late claim for costs of repairs – defendants granted leave to file cross-claim for the cost of repairs

Notice to Produce - Discovery

PROCEDURE - application for summary dismissal - claim by director of company where alleged wrong done to company - proper plaintiff rule - company in liquidation - director does not have standing to seek leave to sue for company - whether conceivable claim for breach of statutory duty - any such claim also belongs to company alone - CORPORATIONS - proper plaintiff rule - putative plaintiff company in liquidation joined as defendant - application for leave to proceed against company in liquidation - no cause of action - leave refused

CRIMINAL LAW - costs application - Costs in Criminal Cases Act 1967 - certificate - murder and manslaughter

CONTRACT – Employment – Restraint of Trade – plaintiff formerly employed first defendant – first defendant now employed by second defendant – whether defendant had solicited customers of plaintiff in breach of contractual restraint – validity of restraint against employment – Held first defendant did not solicit plaintiff’s customers and restraint void to the extent that it geographically limited the first defendant’s employment.

INSURANCE – third-party liability insurance – other third-party liability insurance – excess insurer with Difference in Conditions clause claiming recoupment or contribution from underlying insurer which refused to indemnify insured – property damage to third parties caused by removal or weakening of ground support as a result of tunnelling and excavation work in Singapore – whether causes due to construction defects or arose out of the rendering of or failure to render professional services – whether or not insured was liable to third parties in accordance with the law of Singapore – whether judgment, arbitral award or formal settlement is required for insurer to be liable to indemnify the insured – whether or not the damage occurred within the period of the underlying policy – admissibility of extrinsic material under the law of Singapore in construction of contracts - proper construction of underlying insurance policy with special endorsement and professional services exclusion – whether or not professional services exclusion clause limited to insured’s liability to clients for whom it provided a professional service – operation of the Wayne Tank rule where damage arises by reason of two or more causes – whether or not damage arose out of more than one ‘occurrence’ as defined in the insurance policies – construction of Difference in Conditions clause of excess insurer’s policy – whether reasonable precautions clause in the excess policy was breached – requirements of reasonable precautions clause considered – whether excess insurer entitled to contribution or recoupment from underlying insurer – consideration of requirements for contribution and recoupment and whether met – whether approach to contribution in insurance law relevant to claim for recoupment

CRIMINAL LAW – particular offences – drug offence – manufacture not less than large commercial quantity of prohibited drug - CRIMINAL LAW – appeal against sentence – whether sentence manifestly excessive – whether factual error in sentencing – parity – Crown appeal against sentence of co-offenders abandoned – Crown appeal – sentence manifestly inadequate – offence in mid range of objective gravity – insufficient weight given to standard non-parole period – no reason for departure from standard non-parole period – magnitude of departure denotes error – factual error regarding special circumstances – relevance of need for supervision on release – consequence of finding sentence manifestly inadequate – R v Borkowski [2009] NSWCCA 102 applied – parity consideration relevant to sentencing after Crown appeal

CRIMINAL – sexual intercourse and related offences – discrepancies in the evidence of the witnesses – matter for the jury to assess - CRIMINAL – sexual intercourse and related offences – discrepancies in the evidence of the witnesses – accumulation of inconsistent and unsatisfactory evidence – question whether verdict or verdicts is/are unsafe and unsatisfactory – jury correctly directed as to the matters to consider in determining verdicts - CRIMINAL – sexual intercourse and related offences – whether a comment by counsel has the effect of reversing the onus of proof – whether a comment by counsel puts an accused in the position where, unless he or she can disprove the complainant’s evidence, the complainant’s evidence should be accepted – whether a question has that effect has to be considered in the context of the trial itself and the manner in which it was treated by the trial judge – requirement that trial judge give a clear direction on the onus of proof in such circumstances

EQUITY - general principles - assignments in equity - equitable assignment pursuant to Retiring Partners agreement of inchoate interests in judgment debt and court orders to which partnership members entitled - PROCEDURE - leave to some of judgment creditors to enforce judgment where the interests of the remainder of the judgment creditors had been assigned to them

APPEAL - leave to adduce fresh evidence - events occurring after date of trial - REAL PROPERTY - valuation of land - relevance of subsequent events

EQUITY - Equitable Doctrines and Presumptions - Rectification - whether deed of agreement for sale of shares in a company contained the wrong purchase price - evidence of prior negotiations admissible

CORPORATIONS - general meetings - meeting convened by notice given to members - three of the six directors purport to "postpone" the meeting - company lodges with stock exchange notice of "postponement" and of reasons therefor - indication in notice that chairman will adjourn meeting immediately after it opens - whether "postponement" effective - whether open to chairman to implement notice - duties of chairman concerning adjournment discussed - where chairman also director - CORPORATIONS - financial services and markets - financial products - misleading and deceptive conduct - whether notice to stock exchange misleading or deceptive - whether "in relation to a financial product" - TRADE AND COMMERECE - consumer protection - announcement to stock exchange - whether "in trade or commerce"

Serious sex offender - application for extended supervision order - consideration of length of order and electronic monitoring device

Compensation from the Torrens Assurance Fund - fraudulent execution of mortgage by joint tenant - consideration of loss of other joint tenant - severance - judgment for possession - measure of damage

SUCCESSION [258]- Order for removal of executor- When made.

REAL PROPERTY - torrens title - caveats against dealings - application for extension of caveat - plaintiff claims a beneficial interest as joint venture partner for the development of the land - defendants contend that joint venture agreement validly terminated - serious question to be tried - damages would not be an adequate remedy - balance of convenience favours maintaining the status quo - caveat extended

PROCEDURE – Medical examination – Neuropsychological testing – Reliability of such testing affected by drug use – Defendants seek order that plaintiff submit to drug testing – Whether such an order authorised by UCPR Part 23 – Whether such an order precluded by privilege against self-incrimination – Whether such an order justified by the evidence – Relevance of power to stay proceedings – Form of orders.

BANKRUPTCY – Trustees – Powers, duties, rights and liabilities – indemnity, lien and reimbursement – When trustee’s right of indemnity arises – Whether trustee had lien over trust fund in respect of actual or contingent debts, claims and liabilities as well as costs and expenses incurred as trustee – Whether trustee in bankruptcy possessed right of indemnity for liabilities arising after date of sequestration orders – Whether any right of indemnity arising after date of sequestration orders was after-acquired property under the Bankruptcy Act 1966– Whether trust fund owner entitled to interest at rate prescribed by s 20J(4) of Bankruptcy Act 1966 and/or s 100 of Civil Procedure Act 2005 – Identity of trustee – Costs – Whether to award on trustee basis

EQUITY - general principles - unconscionability - party to joint venture agreement asserts property rights in a manner inconsistent with agreement after other party surrendered its property rights to facilitate performance of the agreement - EQUITY - fiduciary duties - limited fiduciary relationship arising out of contractual obligation to exercise option in particular way - EQUITY - equitable remedies - constructive trust - no pre-existing fiduciary relationship necessary where unconscionability - CONTRACTS - termination of contract - rights and obligations accrued prior to termination - CORPORATIONS - legal capacity and relations with outsiders - circumstances in which companies the alter egos of their controller - REAL PROPERTY - Torrens Title - indefeasibility of title - in personam exception applicable where registered proprietor is a primary wrongdoer

CONVEYANCING - from contract to completion - completion subject to happening of event - event did not happen - whether purchaser made reasonable efforts to cause event to happen - whether "lawful" to complete despite non-satisfaction of condition - whether vendor entitled to give notice to complete - whether purchaser's rescission for non-satisfaction of condition valid and effective - whether vendor's termination for non-compliance with notice to complete valid and effective - whether vendor's purported termination after purchaser's purported rescission was acceptance of repudiation - whether contract abandoned

CRIMINAL LAW - procedure - murder - applications for directed verdicts of not guilty

MORTGAGES – mortgage signed by one of two joint tenants – signature of second joint tenant forged – indefeasibility of title – identification of estate or interest secured – whether mortgage secures an interest in property – whether mortgagor entitled to order for possession of mortgaged property - CONTRACTS – construction and interpretation of contracts

Family Provision. Application for provision by two daughters of deceased. Deceased owned part of country property which was left mainly to a son. Orders for further provision in favour of plaintiffs.

PROCEDURE - Supreme Court procedure - amendment - amendment to correct name of party - whether plaintiffs deliberately chose to sue named defendant - where decision made by liquidators' employee on a misunderstanding - where liquidators' intention was to sue correct party - where director of both parties knew that wrong party had been sued

PROCEDURE - costs - security for costs

Criminal law -sentencing - aggravated sexual intercourse without consent - young offender - vulnerable, 81 year old victim - significance of departure from standard non-parole period - whether manifestly inadequate

ADMINISTRATIVE LAW – judicial review – privative clause – supervisory jurisdiction of the New South Wales Court of Appeal – jurisdictional error – error within jurisdiction – evaluative judgment – comparison of original and amended pleadings – scope of Full Bench’s decision – Industrial Relations Act 1996 (NSW), s 179(4) - INDUSTRIAL LAW – New South Wales – jurisdiction – privative clause – scope of Full Bench’s decision – whether Full Bench decided jurisdiction over unfair contracts issue – Industrial Relations Act 1996 (NSW), ss 106, 179(4) - PROCEDURE – industrial law – amendments – whether pleading amendments constituted new and separate application – amendments to arrangements/contracts pleaded and relief sought – substance of application to be assessed – Industrial Relations Act 1996 (NSW), s 108B - WORDS AND PHRASES – “jurisdictional error” – “must”

CONTRACTS - general contractual principles - agreement to negotiate - whether parties are bound to negotiate if a precondition of the obligation to negotiate has not occurred - contract preconditioned obligation to negotiate on the likelihood of rezoning being imminent - objective approach to construction of agreements to negotiate - WORDS AND PHRASES - "agreement to negotiate"

Unit in retirement village - terms of initial contract for sale resolved - contract for sale also serving as a residence contract under Retirement Villages Act 1989 and mandatory Code of Practice - Contract containing Disclosure Statements under Code and necessity therefor - whether buy back arrangement amounted to an option within s 66ZG of the Conveyancing Act - exercise of option by agent - construction of s 66ZG including amending legislation - correction of mistakes by construction not rectification

TRUSTS AND TRUSTEES - Judicial advice as to propriety of trustees defending proceedings - no question of principle

CORPORATIONS - takeover - statutory embargo on commencement of court proceedings in relation to a takeover bid - takeover bid on foot - application made by bidder to Takeovers Panel for relief - bidder seeks to commence new court proceeding - bidder seeks injunction until determination of Takeovers Panel - whether proceedings "in relation to a takeover bid"

PROCEDURE – Costs – Departing from the general rule – Calderbank offer by defendants – defendant has obtained orders better than offer – Order for costs on party and party basis to date of offer and on indemnity basis thereafter

Vulnerable witness - recording of interview - whether Court can order production - need to check accuracy of translation - desirable conditions